Standing, Demanding & Remanding-Miami Foreclosure Attorneys Jacobs and Keeley

By William Hudson

2015. Lewis v USBank-Motion-for-Rehearing

Miami foreclosure defense attorney Bruce Jacobs accomplished what few attorneys have the commitment, perseverance and sheer guts to accomplish. However, he did so knowing he had a good criminal attorney in his corner- in case the court decided to sanction him, file a Florida Bar ethics complaint or possibly put him in jail. Jacobs is partners with former prosecutor and criminal defense attorney Court Keeley, so at least he would have someone to post bail.

First, Jacobs was able to successfully petition the Fourth District Court of Appeal to issue an opinion about a case it had already affirmed without providing an opinion, and then proceeded to persuade the court to reverse its ruling. If more attorneys would go to the mat for their clients like Jacobs and Keeley did- we might see more homeowners prevailing.

Bruce Jacobs, of Jacobs Keeley, reversed a per curiam affirmance (or PCA) and deserves a shout-out for his victory. Neil Garfield commented, “It is extremely unusual for an appellate court not only to write an opinion when they have made a decision not to write one, but then to recognize their error and reverse themselves is a rarity.”

The March 9 ruling by District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber went unsigned but granted Jacobs’ motion for rehearing, withdrew the PCA and entered an opinion that reversed in favor of the homeowner against U.S. Bank. The court’s ruling was even more miraculous in light of the fact that the case had begun back in 2008 with Jacobs and Keeley refusing to compromise that U.S.Bank, acting as trustee for the registered holders of ABFC 2007-WMC 1 Trust, had no right to file a foreclosure action when no copy of the original note was attached to the bank’s complaint and questioned how the bank could reestablish a lost note. Broward Circuit Judge Jeffrey Streitfeld was not happy with the obstinate attorneys.

By the time the case went to trial in 2014, the bank had added indorsements to an allonge attached to the note, however, the bank’s witness could not explain when the indorsements had been added. It is not uncommon for “magical indorsements” and “phantom assignments” to mysteriously appear out of the ether when banks start practicing their voodoo “photoshop” dance that raises fake instruments from the dead.

The trial transcript demonstrates that Jacobs and Keeley dug their heels-in and reiterated that the lender could not sue the homeowner without evidence of standing- in which the bank lacked. Judge Jeffrey Streitfeld was more concerned about Jacobs and Keeley’s unprofessional behavior and the raising of an objection, than the bank’s failure to prove standing.

“Let me tell you something. We’re skating close to a real problem now, and that’s such a shame. I have to tell you something. I have lawyers in here that don’t sleep because of the weight of the cases that they handle, and they do not do what you’re doing,” Streitfeld said before taking a five-minute recess. “You better get your act together.”

Jacobs was admonished again when he had the audacity to interrupt bank attorney Heidi Weinzetl while she made remarks to the judge he found unsettling. Judge Streitfeld continued, “If you two do this one more minute, you’re going to spend the weekend in a very uncomfortable place.” He continued, “That’s just not what we do. We don’t do that, and you don’t do that. She was responding to my question.” It is no big mystery that the judge sided with the lender who had no more evidence of standing than if someone with a copy of the note and a fake indorsement walked into the courtroom and laid claim to the home. The Fourth District Court of Appeals would affirm but later reconsider after Jacobs filed a motion for rehearing and request for a written opinion. Jacobs and Keeley wouldn’t be golfing with Judge Streitfeld anytime soon.

Jacob would argue that Streitfeld incorrectly ruled in regards to U.S. Bank’s failure to attach a copy of the original note and prove it had the legal right to file for foreclosure in the first place. “This honorable court, the First DCA, the Second DCA and the Fifth DCA have all repeatedly held without exception that it is reversible error to grant a final judgment without proof of standing before filing the complaint,” Jacobs wrote in his appellate brief. The appeal court agreed basing their decision on the bank’s reliance on the pooling and servicing agreement to establish standing- and finding that proof to be insufficient.

Not only did Jacob and Keeley go where most attorneys fear to tread, the three District Judges Robert Gross, Mark Klingensmith and Jonathan Gerber decided to act with integrity, uphold their oath and honor the rule of law by ruling in favor of a homeowner. The appeal court did what many have failed to do- to stand up to banks that attempt to foreclose without proof that they have standing. As we have seen over and over again during the past nine years, presumptions are made in favor of the banks even when they clearly do not possess evidence of standing.

After writing this post, I came across ANOTHER excellent 4th DCA story that I feel should be included.

The days of banks running roughshod over Florida homeowners may be coming to an end, especially if the bank or home-owners association is brought to court in the Florida Fourth District Court of Appeal. Scribner Village Homeowners Association won a final judgment for foreclosure against homeowner Marie Alexandre for unpaid lien assessments. The property was then scheduled for sale. Meanwhile the homeowner filed for Chapter 11 bankruptcy protection and notified the state court that her home was protected by the bankruptcy automatic stay until the bankruptcy was settled. Despite the fact that an automatic stay acts as a temporary restraining order to protect the assets of the estate- the sale proceeded anyways, and the court clerk issued a certificate of sale to the Home Owner’s Association as high bidder.
Scribner Village Homeowners Association would literally steal a 5-bedroom home that was purchased ten years ago for almost half-a-million dollars for a measley $19,100. Scribner then filed a writ of possession, in which Alexandre asked the Palm Beach Circuit Court to deny the request and set aside the foreclosure judgment, sale and certificate of title. Disregarding state and federal law, the state court rejected her request and ruled in favor of the HOA. However, District Judge Dorian Damoorgian with Judges Melanie May and Jonathan Gerber disagreed with the lower court. “The sale should not have proceeded until the stay was lifted,” Damoorgian wrote in his opinion. “The trial court erred in denying appellant’s motion to set aside the sale and everything that flowed from it.”

 
Scribner Village appeared to have dropped out of the litigation, making no appearance on appeal. The question becomes, why are state circuit court’s so unwilling to comply with the state law? Alexandre was represented by attorney James Jean-Francois out of Hollywood (Florida) who did an excellent job of defending’s his client’s rights. Home Owners Associations have gotten away with stealing homes for pennies on the dollar for years. It is unfortunate that a homeowner must go all the way to an Appeals Court to obtain justice.

 

Jacobs-Keeley Trial Lawyers:

http://www.jakelegal.com/

No compensation was provided by this law-firm in exchange for this article.
This is not an endorsement of  Jacobs-Keeley although we were impressed.

 

13 Responses

  1. have you heard about a new non-partisan group of regular people bringing the research of top lawyers & professional accounting & financing people on-board, formed out of chicago, to help consumers & homeowners across america? seems exciting…

  2. SOUND JUST LIKE EVERY HOMEOWNER IN COUNTRY DOESN’T IT.

    SAN FRANCISCO (CN) – Wells Fargo has blown billions of investor dollars by ignoring problems with bad loans that went into mortgage-backed securities, BlackRock and other huge financial services firms claim in state court.

    PIMCO, Prudential Insurance, TIAA-CREF, Group Alliance, Kore Advisors, Sealink Funding and DZ Bank joined BlackRock in class action filed Monday against Wells Fargo in San Francisco Superior Court.

    Wells Fargo was supposed to look out for the interests of the investors in more than 250 residential mortgage-backed securities trusts for which it acted as trustee, but the mutual fund groups say the bank failed to react to “overwhelming evidence of defective loans.”

    “This class action seeks to recover billions of dollars in damages caused by Wells Fargo’s abdication of responsibility causing the beneficiaries of the trusts to lose billions of dollars,” the companies say in the complaint.

    Between 2004 and 2008, the mutual funds claim they invested $241.6 billion in 267 mortgage-backed securities trusts overseen by Wells Fargo.

    While Wells Fargo has played a role in all parts of the mortgage-backed securities market, the lawsuit focuses on its role as a trustee.

    To create mortgage-backed securities, banks originate loans or purchase them from other originators. They then pool them together and package those pools into securities. Investors in the securities receive some of the principal and interest payments made by mortgage borrowers.

    BlackRock says that because the risk that borrowers miss payments or default is “passed through” to the investors in mortgage-backed securities, “the large investment banks and other players in the mortgage securitization industry have no ‘skin’ in the game once the [securities] are sold to holders,” according to the complaint.

    Once a mortgage-backed security is created, the trustee is responsible to protect the investors by monitoring the underlying mortgage loans, the mutual funds say.

    Since investors are not privy to information about the individual loans, they say it has been Wells Fargo’s job to tell them whenever it learned that a loan was the result of predatory lending or a misrepresented application.

    Instead, to protect its own business interest, Wells Fargo ignored pervasive and systemic deficiencies in the underlying loan pools and the servicing of those loans and unreasonably refused to take any action,” the funds say in their complaint.

    “Specifically, Wells Fargo knew that the pools of loans backing the trusts were filled with defective mortgage loans in breach of seller representations and warranties, including those representations and warranties regarding the originators’ compliance with underwriting standards and practices, owner occupancy statistics, appraisal procedures, loan-to-value and combined loan-to-value ratios.”

    By 2009, they say Wells Fargo knew that the trusts had lost $7.9 billion and that one of every four underlying loans was delinquent. A year later, the losses were $18.8 billion, they say.

    The 84-page complaint, filed by Blair Nicholas of Bernstein Litowitz Berger & Grossman, cites breach of contract and breach of fiduciary duty claims based on alleged violations of the pooling and servicing agreements that govern the trusts.

    The trusts now have so many bad loans that they have “experienced enormous delinquency rates, collateral write-downs, and losses,” the funds say in their complaint, adding that exact damages can only be determined through expert testimony at trial.

  3. The 84-page complaint, filed by Blair Nicholas of Bernstein Litowitz Berger & Grossman, cites breach of contract and breach of fiduciary duty claims based on alleged violations of the pooling and servicing agreements that govern the trusts.

    SO HOW COME STATE AG’S AND THE FEDERAL GOV, DOJ, SEC.EXCH.COMM, CAN SAY FOUL, BY USING THE PSA, AND HOMEOWNERS CANT. IF MUTUAL FUNDS CAN SAY IT, THEN WE CAN TO, AS A OWNER OF ONE OF THE MUTUAL FUNDS, RIGHT.

  4. ” Public employees in California, including peace officers, firefighters, teachers, and other public servants, suffered major losses as a result of Morgan Stanley’s residential mortgage-backed securities, in which high-risk home loans were purchased from subprime lenders…”

    http://sanfrancisco.cbslocal.com/2016/04/01/morgan-stanley-denies-deceiving-california-pension-fund-investors/

    Gee, did anyone inform the borrowers of these high risk loans before stealing their homes.

  5. Hey Elaine, many years ago I brought the bogus notary signatures and rubber-stamp-mania to the attention of your Secretary of State. The guy, refusing to give his name, said they would shitcan the complaint as fast as it came in. No help. Wells is in Fredericksburg.

  6. that’s Brydges and Oh, a couple Chicago attorneys on the front lines.Lou does a foreclosure radio show on AM 560 from 8-9 a.m. on Saturdays. Also, Sulaiman Law in Chicago just won a jury trial in Cook County.See my blog at rogerrinaldi.wordpress.

  7. Ims53,

    make copy of your note, that does not have any endorsement on it, then go down have a stamp made up, payed to the order , put who ever you want on it, other then anyone in your chain, sign it, in someones name, date it back a few day after you really sign loan doc,

    then when they come to do sale have a local police there, and show them . your note, and say this is dated,sign. show me your note, then say , go ahead have the sale , it will cost more in damages later.

    if they can use, forged doc, fake notes. so can we. let them prove other wise. let the games begin.

    what makes there note better then your note. nothing . a copy is a copy. hahahahahaha

  8. look what i found…
    [audio src="http://www.brydgeslaw.net/radio/TLBS_Podcast_032616_FullShow.mp3" /]
    listen to this lawyer…

  9. Under TARP. . they charged off and wrote down the outstanding balances against purchaser and all other defendants and indispensable parties to claims that include registratraint and purchasers against the
    TITLE HOLDER AND CONSUMER HOUSEHOLD.

    WHY? WHY? WHY?
    WHAT DID KC DO?

  10. @DwightNJ – yes all the way to Court of Special Appeals in Maryland. What ultimately sunk our case was our second BK attorney who admitted to default/debt and then signed a consent order on our behalf saying that we agreed to pay about $4,500 a month until arrears was settled. Our regular payment was $3,200. We NEVER agreed to this impossible consent order and told the third attorney that. Why would we? I also told him expressly that I wanted the bank to prove standing – I knew they didn’t have it. Our third and final attorney argued this in the highest court – they didn’t want to hear it. I went to the Attorney Grievance Board here, gave them hours of email conversations that the BK attorney and I had. I told them that we NEVER HAD A FACE TO FACE – I wanted all conversations to be in email for this very reason. There was never any indication that he discussed the consent order, etc. with me in email, which he denied. He claimed he had a face to face. He is a liar and I told them that. The Grievance Board chose to believe him and not me. so I would up with no home and a stack of legal bills from final attorney. Essentially we were out of money and couldn’t go on.

  11. I had altered documents, forgeries, fabrications and a sworn affidavit from a certified forensic auditor – not one judge in Baltimore County bothered to look at any of it or listen to any of the three attorneys I had. The foreclosure mill of Shapiro & Burson– who had already been sanctioned in the State of Maryland– had a stack of robo-signed fabrications. Guess who won.

  12. Modern day heroes both of them! What these guys did correctly right from the start was to challenge standing and not the ‘paperwork’ – most judges don’t seem to care about paperwork – they’ve already proven that across the land and certainly here in Maryland where I am. I have personal knowledge in the horrible experience I suffered at their hands with losing my home and waterfront property.

    Since it’s a fact that Florida is the home of the original Rocket Docket it seems like some judges in that state had to start actually ‘looking’ at documents that have been routinely offered by banks as proof of standing.

  13. what about altering the mortgage doc and note whether it changes the meaning or not. The FACT remains, the docs have been altered and allowed to be used in the foreclosure process. This is more of a reason for rescission than whether the loan was ever consummated. neil, I have called you and nobody calls me back. I am 26 days away from my sale date. I really could use some help.

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